Law Commons^™

Section 404 At Thirty-Something: A Program In Search Of A Policy, Alyson C. Flournoy

Alyson Flournoy

This article focuses on three controversies that have dominated debate over wetlands -- jurisdiction, delineation, and the scope of activities regulated by section 404 -- and shows how the limitations inherent in section 404 have contributed to endless conflict over these issues, with little long-term benefit to policy development. This article examines why wetlands policy has failed to mature in its first thirty years.

On Integrity: Some Considerations For Water Law, Christine A. Klein

Christine A. Klein

Expanding upon the aspects of integrity protected under the Clean Water Act, this Article will explore the relevance to water law of chemical,physical, ecosystem, social, and ethical integrity. Just as the Clean Water Act intended to prevent unacceptable "perturbations" of ecosystems, so also this Article will consider the extent to which the law itself may work an unacceptable perturbation of fundamental hydrologic and social principles. In many instances, water policy compartmentalizes the law in ways that have little to do with hydrologic reality and in ways that are antithetical to wholeness and integrity. Examples include the legal bifurcation of surface …

Compartmentalized Thinking And The Clean Water Act, Christine A. Klein

Christine A. Klein

Modern water pollution control traces back to the Federal Water Pollution Control Act of 1972 (Clean Water Act or CWA). Like other statutes of its period, the CWA addresses pollution of a single medium, water. Despite its goal of achieving aquatic integrity, the CWA succumbs to what this article refers to as “compartmentalized thinking.” That is, in drafting the CWA, Congress created a series of regulatory boxes that separate water into constituent parts recognized by law, but not by nature. Undertaking a deeper examination of the fragmentation instinct, this article turns to political theory and cognitive psychology for explanations. In …

Alaska County Action On Toxics V. Aurora Energy Services, Llc, Lindsey M. West

Public Land & Resources Law Review

On September 3, 2014, the Ninth Circuit Court of Appeals reversed and remanded a district court decision that exempted non-stormwater discharges of coal into Alaska’s Resurrection Bay from Clean Water Act liability. The Court of Appeals reasoned that defendants, Aurora Energy Services, LLC and Alaska Railroad Corp., were not shielded from liability under the Clean Water Act because National Pollutant Discharge Elimination System general permits unambiguously prohibit non-stormwater discharges of coal. The general permit lists eleven categories of authorized non-stormwater discharges, none of which include non-stormwater discharges of coal. Thus, the court concluded that the general permit plainly disallowed defendant’s …

The Failure And Future Of Lake Okeechobee Water Releases: A Quasi-Governmental Solution, Jacquelyn A. Thomas

Florida State University Law Review

No abstract provided.

Slides: Session 2, Water Supply And Quality: The Regulatory Framework, Richard E. Schwartz

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Richard E. Schwartz, Crowell & Moring LLP

38 slides

A Difference Of Significance: How The Supreme Court Clouded Wetlands Jurisdiction., Michael Hasty

Michael D. Hasty

Recent opinions by the Supreme Court have disrupted the scheme envisioned by Congress to regulate wetlands (see § 404 of the Clean Water Act). This article explores this issue by tracing the development of wetlands law. It then assesses current application of the Court’s tests, through the lens of two recent opinions in the Fourth and Sixth Circuits. The paper then summarizes outcomes in the circuits, with emphasis on their lack of uniformity in application. Further, the paper assesses the agencies response to clarify wetland jurisdiction through rulemaking. Finally, the underlying constitutional issues in the Court’s opinions are explored.

Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris

UF Law Faculty Publications

This article will explore a number of legal mechanisms that could play a role in ensuring that discharges from agricultural activities do not cause or contribute to violations of water quality standards. Specifically, this article will evaluate the relative effectiveness of: (1) narrative nutrient criteria as compared with numeric nutrient criteria; (2) Total Maximum Daily Load (TMDL) implementation through regulatory and non-regulatory mechanisms; and (3) the relative efficacy of design-based standards such as Best Management Practices (BMPs) and performance-based standards in reducing water pollution from agriculture. The article will draw on experiences from the State of Florida, including Everglades' restoration …

Getting To The (Non) Point: Private Governance As A Solution To Nonpoint Source Pollution, Kyle W. Robisch

Vanderbilt Law Review

Chances are that today you have already unwittingly advanced the slow but steady demise of America's freshwater supply. The sausage and egg biscuit you ate for breakfast, the half-empty bottle of Drano you dumped into your backyard, and the quick trip to the grocery store-these seemingly innocent actions each significantly degrade American watersheds.' In response to this systemic and persistent assault on water quality, Congress enacted the Federal Water Pollution Control Act of 1972. More commonly known as the Clean Water Act ("CWA"), this legislation attempted to take an aggressive and comprehensive approach to improving water quality. To achieve its …

How An Environmental Commerce Clause Challenge Presaged The Decision Of Chief Justice Roberts In Nfib V. Sebelius, M. Reed Hopper

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Pollutant” Element Of The Federal Water Pollution Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the second in a series of five, examines the meaning of “pollutant” under the Clean Water Act. Congress and EPA have defined “pollutant” to mean a list of specific substances and broad categories of materials and wastes discharged into water, e.g., “biological materials” and “chemical wastes.” The definition is broad enough to encompass virtually all substances associated with human activity that are discharged to water, regardless of whether the substances cause pollution or are produced through human endeavor. Therefore, “pollutant” is rarely a limiting element. Instead, the issues with the definition of “pollutant” primarily address whether it includes …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Scholarly Publications

In National Federation of Independent Business v. Sebelius, a plurality of the Supreme Court held that portions of the Affordable Care Act exceeded federal authority under the Spending Clause. With that holding, Sebelius became the first Supreme Court decision since the New Deal to limit an act of Congress on spending-power grounds, rounding out the “New Federalism” limits on federal power first initiated by the Rehnquist Court in the 1990s. The new Sebelius doctrine constrains the federal spending power in contexts involving changes to ongoing intergovernmental partnerships with very large federal grants. However, the decision gives little direction for …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Addition” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people. EPA in particular has confused “addition” with “navigable waters” to such an extent that it threatens to eviscerate half of the CWA’s regulatory strategies and programs: water quality standards and the § 404 program protecting wetlands. This Article examines the interpretation of “addition” …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

University of Colorado Law Review

In National Federation of Independent Business v. Sebelius, a plurality of the Supreme Court held that portions of the Affordable Care Act exceeded federal authority under the Spending Clause. With that holding, Sebelius became the first Supreme Court decision since the New Deal to limit an act of Congress on spending-power grounds, rounding out the "New Federalism" limits on federal power first initiated by the Rehnquist Court in the 1990s. The new Sebelius doctrine constrains the federal spending power in contexts involving changes to ongoing intergovernmental partnerships with very large federal grants. However, the decision gives little direction for evaluating …